*** In order to use the Channel Spyder website, you must agree to the following. ***

AGREEMENT AND TERMS OF USE

Channel Spyder is internet based software that was developed to increase efficiency and scalability in the operation of an online retail sales business using Channel Sales and Drop Ship Warehouses. It allows access to proprietary software information as well as confidential customer and online order information.

The agreement and terms set forth below should be read carefully before you agree to use Channel Spyder software. This document contains detailed Master Software License and Service Agreement terms as agreed upon by your organization. You are required to accept these terms in order to use Channel Spyder software.

In addition, under separate copy, the organization for which you work will agree to the terms of this Agreement as well as execute exhibit(s) defining the contractual arrangement between your organization and Channel Spyder.

In Summary:

Your use is subject to the terms and conditions of the Master License and Service Agreement between Channel Spyder and your organization.

You agree to maintain all information in secrecy and confidentiality.

You agree to use the Channel Spyder system only for purposes associated with your organization and not for any other purpose.

You agree to never disclose any aspect of the Channel Spyder system nor copy any screens, content, etc.

You agree that your use (and possibly your organizations use) of the Channel Spyder system will be terminated for any violation of the above.

Specifically:

BEFORE USING THE SOFTWARE AND WEB SERVICES, YOU MUST FIRST READ AND AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING THE "I ACCEPT" BUTTON OR SIGNING IN THE SPACES PROVIDED BELOW. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SOFTWARE AND/OR WEB SERVICES.

SPYDER SOFTWARE LICENSE AND SERVICE AGREEMENT

This Online User License and Service Agreement (hereinafter "Agreement") is made and entered into by and between Channel Spyder, currently a DBA of Jim Sinclair (hereinafter “SPYDER”), you’re your organization (hereinafter “SELLER”), and you (hereinafter “USER”) for the license and use of SPYDER’s web-based software. The terms and conditions of this Agreement shall apply to all transactions between SELLER and SPYDER. SELLER and SPYDER are each sometimes referred to herein as a “Party” and collectively as the “Parties.”

Section 1 – Overview

1.1 USER vs SELLER. For purposes of this On-Line User License Agreement, all references to SELLER in this Agreement apply to your Organization as well as you the USER. With the exception of Section 3, you are agreeing that all references to SELLER or USER apply to you.

1.2General. This Agreement states the terms and conditions by which SPYDER will provide and SELLER will receive and pay for SPYDER web-based software and associated services.

1.3 Definitions. All definitions are considered interchangeable with the past tense, present tense, plural, singular, or other forms of the same word.

“Customer” or “Buyer” means anyone purchasing or receiving products or services from SELLER. For clarification, “Customer” does NOT refer to any parties to this Agreement.

“Order” means any transaction between SELLER and their Buyer or Customer.

“Reporting” means any sales and expense numbers or calculations reported and displayed to SELLER through the SPYDER Software.

“Vending” means the process of collecting order details from a Sales Channel and transmitting it to one or more Warehouses.

“Inventory” means the process of collecting a price & quantity available file from a Warehouse and sending a file either directly to a Sales Channel or to a Catalog Provider for transmission to the Sales Channel.

“Service” means the services provided by SPYDER as described both in this Agreement, including the attachments and exhibits hereto, including, without limitation, the electronic access to and storage of SELLER’s Customer transaction records and sales data, and the electronic integration with SELLER authorized Sales Channels systems and functions, and the electronic integration with SELLER authorized Catalog Provider systems and functions, and the electronic integration with SELLER authorized Warehouse systems and functions, along with electronic access to SPYDER’s software and tools to allow SELLER to operate various functions of their online retail sales business.

"Software" means the SPYDER business software or any other software accessible to SELLER and provided by SPYDER or distributed by SPYDER and its authorized distributors and resellers and used by SELLER in accordance with the terms of this Agreement. It includes all features of the software, including but not limited to the Order Reports & Charts, Order Vending, Inventory Management & Update Scheduler, Automation Tools, Order & Product Analytics Tools, User Management, other associated modules, and the integrations with Warehouses and Sales Channels.

"Derivative Work" means a revision, modification, translation, abridgment, condensation or expansion of a work or a portion thereof, not to include any Customer Data or Third Party Data, in which the work may be recast, transformed or adapted in accordance with the license grants herein, which, if prepared without the consent of the owner of the copyright therein, would be a copyright infringement as interpreted applying application laws and regulations.

"SPYDER Technology" means the Software, operating platform, SPYDER Web Site, and other technology used to access, retrieve, and republish, with full security and authorization features, Customer Data or SELLER’s Business Data, including, but not limited to, user interfaces, SPYDER Data Storage Facilities, website infrastructure technology, SPYDER content, documentation, and associated designs and product plans and all other technology necessary for SPYDER to provide the Services.

“Commencement Date” means the date SELLER activates their account and the first Order is transmitted to SPYDER Software.

“User” means anyone with access to the software either through use of their own login credentials or another users login credentials.

References to the “Organization” means the parent organization signing the master written copy of this Agreement.

Section 2 – Agreement Terms

2.1Initial Term. The Initial Term of this Agreement shall begin on the Commencement Date, and shall continue for thirty (30) days thereafter.

2.2 Renewal Term(s). Following the Initial Term and any Renewal Term, this Agreement will be automatically renewed at the same pricing and other terms as set forth herein for additional thirty (30) day term(s), unless either party shall have given written notice (a “Non-Renewal Notice”) to the other party not later than fifteen (15) days prior to the end of the Initial Term, or thirty (30) days prior to any subsequent Renewal Term, as the case may be, of such party’s intention not to renew this Agreement. The Initial Term and all Renewal Term(s), if any, are collectively referred to as the “Term” of this Agreement.

2.3 Gross Sales or Total Sales. Gross Sales pursuant to this Agreement and for which SPYDER is entitled to fees pursuant to Exhibit “B” Pricing, executed by the Organization, are determined exclusively by the numbers reported in the Reporting section of SPYDER software. As of the Commencement Date, Sales Channel Transactions will begin to be recorded by the software as each Sales Channel Store is added and activated by the SELLER. As used in this Agreement, “Gross Sales” or “Total Sales” shall include 100% of all funds recorded by the Service. Reference to “Monthly Gross Sales” shale refer to sales recorded by the service from 12:01am on the 1st day of the month to 12:00am on the last day of the month. Gross Sales includes Item Price, Sales Tax, Shipping Charged, and any other fees SELLER includes in their charges (collected or not collected) to their Buyer/Customer.

2.4 Gross Sales Accuracy. During the Term of this agreement, SELLER agrees to use reasonable, good faith commercial efforts to maintain an accurate and true count of their Total Gross Sales from each Sales Channel Store used within the SPYDER software, and to promptly report to SPYDER any errors in billing.

2.5 Test Mode (aka Sandbox or Non-Live mode). Operation and use of the service is available to some SELLER’s in a SELLER controlled Test Mode. While SELLER’s account is in Test Mode, no orders will be sent to any Warehouse and no shipment tracking numbers will be posted to the Sales Channels. Other features of the service, including but not limited to Data Exports, may not be available to SELLER’s operating in Test Mode. All fees, pursuant to Exhibit “B” Pricing, executed by the Organization, will continue to accrue while SELLER’s account is in Test mode.

2.6 Automatic vs Manual Processing Mode. Some parts of the Service, including but not limited to the Order Vending and Inventory Tools, are available in a SELLER controlled “Automatic” (Non-Review) Processing Mode or Manual (Review) Mode. While in use, the Automatic setting will send individual orders to Warehouses prior to being reviewed by SELLER. While in use, the Inventory Automatic Timer Setting will send Inventory/Price/Quantity files to the Sales Channels prior to being reviewed by the SELLER. Use of ANY area of the SPYDER software in Automatic (Non-Review) or Active Timer Mode is at the Sole risk and responsibility of the SELLER. SPYDER’s official written recommendation is that SELLER should review ALL DATA being transmitted from the Software.

2.7 Segmented Services. SPYDER services are available in parts (or segments), including but not limited to, “Reporting”, “Vending” and “Inventory”. SELLER’s approved and enrolled access to any Segment of SPYDER services is outlined in the attached Exhibit “B” Pricing, executed by the Organization. SELLER acknowledges that their access to one or more segmented services does not grant SELLER rights to all services. Furthermore, access to any segmented services above and beyond those Segments noted in Exhibit “B” Pricing, executed by the Organization, either intentional or unintentional, are at SPYDER’s sole discretion. All Segmented services, SELLER is not enrolled in as noted in Exhibit “B” Pricing, executed by the Organization, will not be billed to SELLER and can be turned on or off at SPYDER’s sole discretion.

2.8 Inventory/Price Management Tool. The available Inventory Management tool requires accurate Warehouse configuration and the input of data files in a specific format by SELLER, and Warehouse, for the Inventory tool to function correctly. SELLER accepts all responsibility for the review and accuracy of Warehouse configuration and all data prior to uploading inventory and pricing data to the Inventory Management Tool. SELLER further agrees to inspect and approve all outgoing inventory files prior to releasing them for distribution by the Software to the Sales Channels. SELLER accepts all responsibility for the prices and quantities contained in the files sent by the Software to the Sales Channels. SELLER further agrees to conduct a daily accuracy review of all inventory quantities and prices, as displayed to the public directly on the Sales Channels.

2.9 Order Vending Tool. The available Order Vending tool is designed to capture the order data as provided by the Sales Channel(s) and display the necessary order data for review by SELLER prior to releasing it for transmission to the Warehouse(s). SELLER accepts all responsibility for the accuracy of the data received by the Software. SELLER further agrees to inspect and approve all outgoing order details prior to releasing them for distribution by the Software to the Warehouses. SELLER accepts all responsibility for the accuracy of the Order data received by the Warehouse(s). On occasion, due to circumstances beyond SPYDER’s control, the transmission of an individual (or group of) orders may be delayed or fail to transmit from the Sales Channels into the Software or be delayed or fail to transmit from the Software to the Warehouse. SPYDER will continue to make a diligent effort to minimize the effect of these delays or failures, subject to Section 5.2. SELLER accepts all responsibility for confirmation of orders moving through the Software in a timely manner, and will alert SPYDER immediately in the event of an unresolved transmission delay or failure.

2.10 Reporting & Analytics Tool. The available Reporting & Analytics Tool is intended to display ESTIMATED numbers covering various sales data points collected from Third Party Vendors as well as some optional input from SELLER. All Reporting numbers are subject to availability of the data in electronic format from Third Party sources. SPYDER will continue to make a diligent effort to work toward the accumulation of the most accurate dataset available for display as part of the Reporting Tool. Due to the unpredictability of Third Party sources collected from, SPYDER makes no guarantees as to the availability or accuracy of data displayed by the Reporting tool. SELLER accepts all responsibility for validation and confirmation of ALL numbers displayed as part of the SPYDER Reporting Tool. SELLER further accepts responsibility for any and all business decisions SELLER makes after review of data provided by the Reporting or Analytics Tools.

2.11 Modification. This SPYDER SOFTWARE LICENSE AND SERVICE AGREEMENT can and will be modified by SPYDER from time to time. Changes in the Agreement will be posted on the SPYDER Public Web Site, www.ChannelSpyder.com. Notification of significant changes in your rights, duties and responsibilities will be in accordance with the provisions in Section 9.19. All of such changes will be binding upon USER after such posting or notification.

Section 3 – Payment Terms and Fees

3.1 Fees. SELLER shall pay all fees due according to the prices and terms set forth on Exhibit “B” Pricing, executed by the Organization, to this Agreement and in accordance with Section 3.3 below.

3.2 Credit Account. SELLER agrees to maintain a valid credit account with complete information for billing entered into the software during the term of this Agreement. “Credit Account” means an available MasterCard, American Express, Visa, PayPal or other similar credit account that allows SPYDER to collect fees for use of the service. SPYDER reserves the right to modify accepted Credit Account types at any time.

3.3 Payment Terms. Exhibit “B” Pricing, executed by the Organization, attached hereto and incorporated herein by reference sets forth all fees payable by SELLER to SPYDER during the Term of this Agreement, unless otherwise agreed by the Parties in writing. The Parties acknowledge that fees may be subject to change during the Initial Term and Renewal Term, provided that any such change is agreed to by SELLER and SPYDER. Fees for use of SPYDER software are calculated as the greater of the Gross Sales percentage based monthly fee or the Minimum Service Fee as set forth in Exhibit “B” Pricing, executed by the Organization,. Failure to maintain timely payment obligations shall constitute Material Breach under this Agreement.

Non-Recurring Charges. Unless otherwise noted in Exhibit “B” Pricing, executed by the Organization, non-recurring charges in the amount set forth in Exhibit “B” Pricing, executed by the Organization, shall be payable in advance prior to SELLER’s Commencement Date.

Testing Period. An initial credit for services may be provided and applied toward monthly recurring charges, as set forth in Exhibit “B” Pricing, executed by the Organization, to allow for a testing period in which SELLER proves to its reasonable satisfaction that the Services provided conform to this Agreement and the representations made.

Bill Date. Monthly recurring charges are subject to a Minimum Monthly Service Fee, as set forth in Section 3.7 and Exhibit “B” Pricing, executed by the Organization. Unless otherwise agreed in writing, monthly recurring charges will commence on sellers “Bill Date”, as noted in Exhibit “B” Pricing, executed by the Organization, and under no circumstances will SELLER’s Bill Date exceed 10 days from the end of the previous calendar month.

Monthly Invoice. Not later than one (1) business days following the end of every calendar month during the Term of this Agreement, SPYDER shall make available through the software a printable invoice (a “Monthly Invoice”) to SELLER setting forth all monthly fees payable by SELLER for the preceding calendar month. Monthly Invoices are due in full on SELLER’s Bill Date. SELLER’s Credit Account will be automatically debited on SELLER’s bill date.

SELLER Billing Dispute. In the event SELLER disputes any fees claimed to be owing on any Monthly Invoice, SELLER shall provide written notice of such dispute to SPYDER, setting forth, at a minimum, the amount disputed and the grounds upon which such dispute is based, and parties shall work together in good faith promptly to resolve any dispute. SELLER shall continue to pay the amount in dispute until such dispute is resolved. SPYDER shall be entitled to terminate this Agreement for cause and claim a breach hereunder during the pendency of such dispute if SELLER fails to fulfill payment obligations. Upon resolution of the dispute, SELLER shall receive a credit for any excess payments made in the next Monthly Invoice; provided, however, that if the dispute occurs with respect to the final Monthly Invoice prior to the expiration or other termination of this Agreement, SPYDER shall remit any excess payments made by SELLER within ten (10) business days of resolution of the dispute. Following 30 days from payment, SELLER waives all rights to dispute charges already paid.

3.4 Promotional Pricing. SPYDER reserves the right to offer specials or promotional pricing that only applies to new Sellers or specific Sellers. Details of such specials or promotions may be posted on our public web site, and may be withdrawn at any time without notice. The parties acknowledge and agree that the pricing established under this Agreement as noted in Exhibit “B” Pricing, executed by the Organization, are unique to the parties of this Agreement, and may not be consistent with pricing of other Sellers.

3.5 Promotional Special Pricing Sunset. All promotional pricing or special discounts will expire per the terms set forth in Exhibit “B” Pricing, executed by the Organization, or in six months, whichever is sooner.

3.6 Sales Volume Discount. As noted in Exhibit “B” Pricing, executed by the Organization, SELLER may receive a discount off their regular monthly service fee in exchange for exceeding a pre-determined Gross Sales volume. Discounts apply to the total sales volume from all Sales Channels for a single SELLER account, User License. Discounts are calculated based on Total Gross Sales volume AS RECORDED in the SPYDER Software during an individual Calendar Month.

3.7 Minimum Monthly Service Fee. As noted in Exhibit “B” Pricing, executed by the Organization, SELLER agrees to pay a minimum monthly service fee for use of the SPYDER Software. This minimum fee will be due and payable according to the Terms of Payment regardless of any Gross Sales processing through the SPYDER Software. The Minimum Monthly Service fee may be discounted, as Promotional Pricing (per Exhibit “B” Pricing, executed by the Organization), for a specified period of time to allow new sellers time to migrate their business operations over to the SPYDER software. Any discount of the Minimum Monthly Service Fee is considered Promotional Pricing, as noted in Section 3.4.

3.8 View Only Service Fee. Subsequent to the termination of this Agreement, if SELLER wishes to retain non-edit, no vending, un-connected, view-only Internet access to the sales and transaction records already on the SPYDER service, the fee will be 50% of the then applicable Minimum Monthly Service Fee or previous months total billing, whichever is greater. This fee may change from time-to-time as the Regular Service fees and monthly minimum fees change. Use of this service constitutes SELLER’s agreement that none of SELER’s business operations are operating through the SPYDER software. SELLER agrees that SPYDER services are operating without an active connection to any Sales Channels or Warehouses. In the event of any dispute (including non-payment) between SELLER and SPYDER, access to the View Only Service will be terminated immediately at SPYDER’s sole and unilateral discretion. Although it is SPYDER’s intent to maintain this independent access indefinitely, no guaranty can be made.

3.9 Late Payments. In the event payment for services is not received, per Section 3.3 above, by the fifteenth (15th) day of any calendar month, SELLER waives all rights to any Service Discounts and Promotional Pricing (Section 3.4 and 3.6) set forth in Exhibit “B” Pricing, executed by the Organization, and shall have until the end of that calendar month to bring the account current. At that time, SPYDER may at its sole discretion, with seven (7) calendar day’s written notice, modify, suspend or terminate SELLER’s access to the SPYDER Service. Following any modification, suspension or termination of Services pursuant to the foregoing, SPYDER may require a deposit not to exceed two (2) months monthly Minimum Payment to secure SELLER’s payment obligations under this Agreement.

3.10 Taxes. All fees charged by SPYDER for Services are exclusive of all taxes. If applicable, SELLER will be responsible for, and will pay in full, all federal, state, and local, sales, use, excise, gross receipts, and similar taxes, and all fees now in force or enacted in the future that are imposed on SELLER with respect to the Services received by SELLER under this Agreement, and SPYDER will be responsible for, and will pay in full, all federal, state, and local, sales, use, excise, gross receipts, and similar taxes, and all fees now in force or enacted in the future that are imposed on SPYDER with respect to the Services provided by SPYDER under this Agreement.

Section 4 – Intellectual Property and License

4.1 Nondisclosure of Confidential Information. Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that is marked or designated as confidential or that, under the circumstances of disclosure, reasonably should be considered confidential. Confidential information will also include, but not be limited to, SPYDER developed technology, SELLER developed technology, and these Terms and Conditions. Each party agrees that it will not use in any way, for its own account or account of any third party, except as expressly permitted by, or required to achieve the purpose of this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information, and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information.

4.2 Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party; (ii) becomes known independently of disclosure by the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure.

4.3 Grant of License. SPYDER hereby grants, and SELLER hereby accepts, a nontransferable, non-exclusive, worldwide license to use the SPYDER Software during the term of this Agreement in accordance with the terms of this Agreement, to use the SPYDER Technology solely for purposes of using the Service. SELLER shall have no right to use SPYDER technology for any purpose other than using the Service.

4.4 User License Agreement. SELLER is granted a single (1) user licenses under this agreement. User Licenses are required for all individual Sellers accessing the SPYDER Software. A single user license authorizes SELLER to add and manage “Staff User” access through the staff management tool on the admin login. A single user license allows up to 10 separate “Staff Users” under this Agreement. SELLER may grant access to “Staff Users” for some or all of the features of the Service. SELLER accepts all responsibility for actions performed within the software by “Staff Users” within their account.

4.5 Ownership Rights to Software. SELLER acknowledges and agrees that the Software and the source code associate therewith are the confidential and proprietary property of SPYDER, and except to the extent expressly authorized in this Agreement, SELLER receives no rights to and will not sell, assign, lease, market, transfer, encumber or otherwise suffer to exist any lien or security interest on, nor allow any third person, firm, company, or other entity to copy, reproduce or disclose the Software or source code, whether in whole, in part, or in any manner whatsoever. Title, ownership rights, and intellectual property rights in and to the SPYDER Technology and Software whether in machine-readable or printed form, and including without limitation Derivative Works, compilations, or collective works thereof and all related technical know-how and all rights therein are and shall remain the exclusive property of SPYDER or its suppliers. Subject to SELLER's rights pertaining to “Customer Data” noted in Section 8.1, SPYDER shall own all Derivative Works created.

If suggestions made by SELLER are incorporated into subsequent versions of the SPYDER Technology, SELLER hereby assigns to SPYDER, at no cost, all rights of ownership SELLER may have, to any suggestions, concepts, or improvements concerning the SPYDER Technology that SELLER communicates to SPYDER.

This Agreement does not include the right to sublicense the Software or Service and is personal to SELLER and therefore may not be assigned (by operation of law or otherwise) or transferred without the prior written consent of SPYDER.

SELLER acknowledges that the SPYDER Software in source code form, or Service in any form, remains a confidential trade secret of SPYDER and/or its suppliers. SELLER shall not take any action to jeopardize, limit or interfere in any manner with SPYDER's ownership of or rights with respect to the SPYDER Technology, Software, and Service. SELLER acknowledges SPYDER's ownership of all copyright, trademarks, patent, and other intellectual property associated with the SPYDER Technology and will do nothing to interfere with such rights.

Except for the rights expressly granted to SELLER hereunder, SPYDER reserves for itself all other rights in and to the SPYDER Technology.

SELLER agrees not to attempt to decipher, decompile, disassemble or reverse engineer the SPYDER Software or Services or allow others under its supervision and control to do so. SELLER further agrees not to modify or create derivative works of the SPYDER Software or Service. SELLER shall not grant rights to any third party to reproduce, implement, modify, translate, or reverse engineer the SPYDER Technology, or otherwise determine or attempt to determine source code for the SPYDER Technology or to create Derivative Works thereof without SPYDER's written authorization.

SPYDER shall retain complete ownership of all modifications and Derivative Works provided to SELLER as part of any maintenance, support, or services. In no event shall any support, maintenance, services or Software provided to SELLER by SPYDER pursuant to this Agreement be deemed to be based on any "work made for hire" agreement between the Parties, unless otherwise agreed in writing by the Parties.

SELLER agrees not to allow access to its database by ANY outside entities (other than SELLER’s attorneys), including but not limited to, third party services, EDI services, clearing houses, consultants, computer programming services, or financial investors unless such outside entities have executed an appropriate confidentiality agreement with SELLER which obligates any such outside entities to treat information in the database regarding the services provided by SPYDER hereunder confidentially.

SELLER agrees that any Third Party EDI connections or customizations of the Service created by SPYDER for SELLER are the property of SPYDER and may be used by other Licensed Users with a similar or identical need for said EDI connections and/or customizations.

To the extent that SELLER (or its employees or contractors) participate(s) in the creation or development of technology associated with SPYDER Software subsequent to the Commencement Date, SELLER, on behalf of itself and its employees and contractors, hereby assigns to SPYDER all right, title and interest, including all intellectual property rights, in the technology.

4.6 Protection of Software. SELLER acknowledges that the Software is the confidential and proprietary property of SPYDER. SELLER agrees to hold it in trust and not to sell, rent, license, distribute, transfer, or, directly or indirectly permit the sale, rental, licensing, distribution, disclosure, or transfer, or disclosure of the Software or its contents to any other party and to use its best efforts to prevent inadvertent disclosure, transfer or distribution of the Software to any third party, either during the term of this Agreement or thereafter.

4.7 Logos and Brands. SELLER agrees that Spyder, Channel Spyder, Part Spyder, Spyder Corp and other names and associated logos are brands, trademarks or service marks of Channel Spyder and Jim Sinclair.

4.8 Trademarks. SPYDER will notify SELLER in written guidelines of the Channel Spyder title, and emblem if any, which SELLER is authorized to use. SELLER may not modify the emblem or title in any way. SELLER may use SPYDER Trademarks (which include the title, emblem, SPYDER trademarks and service marks) only within the scope of this Agreement and as described in the written guidelines SPYDER provides to SELLER.

Royalties for Trademark. The royalty normally associated with non-exclusive use of our Trademarks shall be waived for SELLER so long as SELLER is not in material breach of this Agreement.

Advertising Material. SELLER shall promptly modify any advertising or promotional materials that do not comply with SPYDER guidelines as provided to SELLER in writing. If SELLER receives any complaints about SELLER's use of SPYDER Trademarks, SELLER agrees to promptly notify SPYDER. When this Agreement ends, SELLER agrees to promptly cease any and all use of SPYDER Trademarks. If SPYDER takes any action to enforce the terms of this provision and SELLER is found by a court of competent jurisdiction to have violated the provisions of the immediately foregoing sentence, SELLER shall be liable for all attorney’s fees and costs associated with or incurred in SPYDER’s enforcement.

Similar Marks. SELLER agrees not to register or use any mark that is confusingly similar to any SPYDER Trademark.

Copyright or Other Marks. SELLER agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Software.

4.9 Violation Constitutes Breach. SELLER agrees that any violation of Section 4.1, 4.5 and/or 4.6 above constitutes a material breach of this Agreement and shall terminate the license granted by this Agreement.

Section 5 – SPYDER Representations and Warranties

5.1 Authority of SPYDER. SPYDER represents and warrants that it has the legal right to enter into this Agreement and perform its obligations hereunder.

5.2 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. SPYDER does not and cannot control the flow of data to and from the Internet network or other private networks. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although SPYDER will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, SPYDER cannot guarantee that such events will not occur. Accordingly, SPYDER disclaims any and all liability resulting from or related to such events.

5.3 Warranty Disclaimer. SPYDER expressly disclaims all implied warranties, including, without limitation, warranties of merchantability, non-infringement, and fitness for a particular purpose and no oral or written information or advice given by SPYDER, its employees, distributors, dealers or agents shall create any warranties.

5.4 SPYDER Service. The SPYDER service includes INTERNET ONLY access via any web-enabled computer (using browsers supported at the discretion of SPYDER) to the SELLER’s unique database at a secure hosting site with appropriate security and access controls. Subject to Section 5.2, SPYDER warrants and represents that the Services provided under this Agreement will be available and will perform as specified in this Agreement.

5.5 Limitation of Liability. Under no circumstances and under no legal theory, tort (including negligence), contract, strict liability or otherwise, shall SPYDER or its suppliers or agents, officers, employees, principals, directors or subsidiaries be liable to seller or any other person for any special, incidental, or consequential damages of any kind, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, internet inaccessibility or any and all other commercial damages or losses, even if SPYDER shall have been informed of the possibility of such damages, or for any claim by any third party. This limitation of liability shall apply to liability for death or personal injury. SPYDER or its suppliers or agents, officers, employees, principals, directors or subsidiaries shall not be liable to customers, warehouses, sales channels, other third parties, SELLER or any other person or legal entities, either local, state, national or international governmental regulatory bodies for any damages of any kind arising out of a SPYDER licensed users fraudulent business practices, intentional or unintentional.

5.6 Maintenance and Support. This Agreement includes maintenance and support of the Software, SPYDER Technology and the Services provided hereunder. Support services are offered via support ticket requests opened within the software. SPYDER support team will prioritize and resolve all support issues in the fastest possible timeframe.

5.7 SELLER Training Limitations. SPYDER shall provide training to SELLER’s employees and representatives per the terms of a separate written agreement between the Organization and SPYDER. SPYDER customer training is limited to the Software. SPYDER training does not include training SELLER staff on use of their PC, web browsers, warehouse order procedures, sales channel procedures, or the art of selling products online, except as the same may relate to specific attributes or functionalities of SPYDER's Software and services.

5.8 SELLER Training Limits Of Liability. SPYDER is not liable for any damages resulting from sales/order errors, product listing errors, or financial errors made as a result of particular, general or specific examples given during the training. At all times, it is the responsibility of SELLER to maintain proper business practice, pricing, inventory, & order review, and proper financial management of their online sales business.

5.9 Software Modifications. Unless specifically agreed to in writing, SPYDER is under no obligation to a SELLER, to provide custom or other changes to the Software. Custom software code that benefits a majority of our licensed users may be done with or without charges to the requesting seller. Custom software code that provides immediate benefit to an individual seller will be charged to that SELLER upon written terms agreed to by SPYDER and SELLER. SPYDER will have complete discretion in all decisions regarding possible software modifications, and is under no obligation to make any modification, even upon an offer to pay for such modification, unless otherwise agreed by the parties in writing.

Section 6 – SELLER Representations and Warranties

6.1 Seller Warranty. SELLER represents and warrants that the performance of its obligations and use of the Service by SELLER and SELLER’s authorized Users, will not violate any applicable laws, regulations or cause a breach of any agreements between SELLER and any third parties.

6.2 Breach of Warranties. In the event of any material breach of any SELLER Warranties or Obligations pursuant to this Agreement, in addition to any other remedies available at law or in equity, SPYDER will have the right, in its sole discretion, to suspend any related Services if reasonably deemed necessary by SPYDER to prevent material harm to SPYDER and its business; provided, however, that, notwithstanding any other provision of this Agreement, prior to any such suspension of services, SPYDER will provide notice and the opportunity to cure in accordance with Section 7.1 below.

6.3 SELLER’s Responsibilities. SELLER shall be exclusively responsible for the supervision, management, and control of SELLER’s use of the Software, including, but not limited to:

Assuring proper configuration of SELLER’s equipment or devices; and

Assuring all electronic connection authorizations with Third Parties are current & functional; and

Assuring all Unique Product Number formatting is consistent with requirements of the SPYDER Software allowing SPYDER to identify a specific Product, made by a specific Manufacturer, shipped by a specific Supplier; and

Assuring all Warehouse configurations and Inventory file data is provided correctly; and

Assuring the accuracy of Orders prior to release for transmission to Warehouse(s); and

Assuring the accuracy of Inventory data prior to release for transmission to Sales Channels; and

Establishing adequate operating methods for SELLER and its users; and

Establishing adequate operating procedures to verify and confirm as accurate all data provided by and moving through the SPYDER Software; and

Implementing procedures sufficient to satisfy SELLER’s obligations for security under this Agreement, including appropriate action between it and its employees to prevent misuse, unauthorized copying or modification of the Software.

6.4 Third Party Vendors. Third Party Vendors, for purposes of this agreement, include but are not limited to Sales Channels, Warehouse Suppliers, Catalog Providers, & Shipping Carriers. SELLER agrees that all Third Part Vendor relationships are at the discretion of said vendors. SPYDER has no responsibility to maintain SELLERS relationship, or their own, with any Third Party Vendor. SELLER agrees to hold SPYDER harmless against any and all claims arising from SELLER’s use of SPYDER software in connection with Third Party Vendors system & services.

6.5 Compliance with Law. SELLER agrees that it will use the Service(s) only for lawful purposes and in accordance with this Agreement. SELLER acknowledges that SPYDER exercises no control whatsoever over the content of the information passing through SELLER’s stores and that it is the sole responsibility of SELLER to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations.

6.6 Seller Acknowledgement. Seller acknowledges they have been advised as to their responsibilities as outlined in Section 6.3 and SPYDER’s recommendation as noted in Section 2.6. SELLER further acknowledges they have read and fully understand SPYDER’s Limitation of Liability as noted in Section 9.3 and 9.4

6.7 Restrictions on Use of Services. SELLER agrees not to lend, rent, lease, loan, resell for profit, use in a time sharing or service bureau arrangement, or distribute the Software or Service or use it in a client/server network, thereby providing multiple users access to the Software or Service, or otherwise transfer the Software or Service in whole or in part, except as expressly provided for in this Agreement.

6.8 Customer Information. SELLER acknowledges that SPYDER shall have no responsibility to inform SELLER’s Customers or to document that Customers are aware that their Personal Information is being transmitted over the Internet to a remote storage site.

Section 7 – Termination

7.1 Termination for Cause. Either party may terminate this Agreement if: (a) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after the Effective Date of Notice of the same, except in the case of failure to pay fees, which must be cured within five (5) days after written notice from SPYDER; (b) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (c) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

7.2 Termination without Cause. SELLER or SPYDER may terminate this Agreement without cause at any time during the Term of this Agreement by giving the other party fifteen (15) days prior written notice, setting forth the effective date of termination (the "Termination Date"). In the event of a termination by SELLER without cause pursuant to this Section 7.2, SPYDER shall continue to provide Services hereunder during the period between the date of notice of termination and the Termination Date, and SELLER shall pay their fees due under this Agreement for such period not later than five (5) business days after the Termination Date.

7.3 No Liability for Termination. Except as otherwise provided in this Agreement, including, without limitation in Section 7.2 above, neither party will be liable to the other for any termination of this Agreement in accordance with its terms.

7.4 Effective Date of Termination. Unless otherwise stated in this Agreement, termination will be effective on the last day of the calendar month in which the fifteenth (15th) day following delivery of the written notice of termination falls. Upon the effective date of termination of this Agreement: a. SPYDER will immediately cease providing the Service(s), unless otherwise agreed in writing by the Parties.b. Any and all remaining payment obligations of SELLER under this Agreement for Service(s) provided through the date of termination will immediately become due and payable.

7.5 Post Termination Service. SPYDER may allow SELLER to retain non-edit access to their data at their database, subject to all terms of this agreement, for a reduced monthly fee.

7.6 Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 3, 4, 7.4, 7.5, 8 and 9.

Section 8 – Data Provisions

8.1 Ownership of the Data. All unique “Customer Data” received by SPYDER is the property of the SELLER. This includes Customer Names, Addresses, Phone Numbers, and eMail addresses. All order data, not-unique to an individual Customer is the property of SPYDER. This includes Sales Channel, Warehouse, Product Manufacturer & Product sales data as well as order and customer statistical data. How the data is presented (i.e. the order displays, reports, charts, graphs, analytics and software programming that presents the data) is the property of SPYDER.

8.2 SELLER Data Access. SELLER will have access to view their data through the currently available user interface, so long as no event which would give SPYDER the right to terminate this Agreement pursuant to Section 7.1 above has occurred and is continuing beyond the cure period specified in that Section. SELLER will have full access to their historical data through the user Interface going back a minimum of 90 days. SPYDER recommends that SELLER keep their own historical records or download from original third party data source as needed every 30 to 60 days.

8.3 SPYDER Data Access. For purposes of Software modifications, resolution of any errors (system wide or seller specific), performance monitoring, improvements and debugging, SPYDER or its agents shall have reasonable and regular access to SELLER’s database, to the extent practicable, at all times. SPYDER shall maintain full confidentiality of SELLER’s business operations, and shall be fully responsible for all acts and omissions of its employees, agents and representatives, during access of SELLER’s database.

8.4 Data Import Expectations. SPYDER, at their discretion, and for an additional fee, may make available the import of SELLERS historical data. SELLER acknowledges that this service is limited in its capability and the orders may or may not show in the Software in the same way as orders that originated in the SPYDER Software.

8.5 Secondary Data Source. The SPYDER service is a tool for collection and presentation of data collected from third party sources. All data hosted on the SPYDER Service is considered a secondary, or additional, source of information. While SPYDER takes reasonable action to backup and store data collected, the purpose of this backup is to maintain continuity of the service whenever possible. SELLER warrants that any & all data collected & stored within the SPYDER Software is, and will remain, available at SELLER’s discretion, via some source OUTSIDE of the SPYDER Software. In the event of a failure and/or data loss within the SPYDER Service, SELLER accepts all responsibility for collection and storage of data contained within the SPYDER software.

Section 9 – Miscellaneous

9.1 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, volcano, hurricane, tornado, flood, tidal incursion, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of reasonable commercial efforts to promptly correct such failure or delay in performance). If SPYDER is unable to provide Service(s) for any period as a result of any action or event specified in this Section 9.1, SELLER shall not be required to pay for the Services for such period, and SPYDER shall refund any amounts paid by SELLER in advance with respect to such period (or, in SELLER's discretion, apply any the amount to be refunded as a credit toward SELLER's next monthly payment). In the event SPYDER is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of continuing force majeure event, SELLER may cancel the Service(s) immediately at the end of such thirty (30) day period without any further obligation to SPYDER, and SPYDER shall promptly refund any amounts paid by SELLER in advance covering the period for which SPYDER was unable to provide Services. The notice provisions of Sections 7.1 and 7.2 shall not apply with respect to any cancellation by SELLER pursuant to this Section 9.1

9.2 Marketing. SELLER agrees that during the term of this Agreement SPYDER may publicly refer to SELLER, orally and in writing, as a Licensed User of SPYDER Software; provided, however, that any public reference in writing to SELLER shall require the advance written consent of SELLER. Any other, non-oral or written, reference to SELLER by SPYDER requires the written consent of SELLER.

9.3 Limitation of Liability. Either Party’s liability, if any, for damages to the other party for any cause whatsoever arising out of or related to this Agreement, and regardless of the form of the action, shall be limited to the damaged Party’s actual damages. With the exception of violation of Sections 4.1, 4.5 and/or 4.6, Neither Party shall be liable for any indirect, incidental, punitive, exemplary, special or consequential damages of any kind whatsoever sustained as a result of a breach of this agreement or any action, inaction, alleged tortious conduct, or delay by the other Party.

9.4 SPYDER Software Limitation of Liability. The SPYDER Software is designed to be a tool used under close supervision by SELLER. Review and Input from SELLER is required on every order before it is transmitted by the Software to a Warehouse. Review and Input from SELLER is required on every Inventory file before it is transmitted to a Sales Channel. In the event of any failure within the Software, and subsequent financial loss by the SELLER, SPYDER’s Liability is limited to the actual out of pocket loss to the SELLER. SPYDER has no liability to SELLER for forgone profits. Furthermore, under no circumstances will SPYDER’s individual order liability exceed the cost of return shipping for the Order in question, nor will SPYDER’s Total Liability to SELLER in any calendar month exceed the Service Fees paid by SELLER to SPYDER during that calendar month. SELLER assumes all liability for personal business decisions made after review of information provided through the SPYDER Reporting, Auditing or Analytics Tools.

9.5 Error Notification Timeline. Unless SELLER notifies SPYDER of any discrepancies or irregularities in the operation of the Software within Fifteen (15) Calendar Days of the Order Transaction Date, the Order processing and operation of the Software will be deemed accepted by SELLER for all purposes. TO THE EXTENT ALLOWED BY LAW, SELLER RELEASES SPYDER FROM ANY AND ALL LIABILITY AND CLAIMS OF LOSS RESULTING FROM ANY ERROR OR DISCREPANCY THAT IS NOT REPORTED TO SPYDER WITHIN FIFTEEN (15) DAYS OF THE DATE SAID DESCREPANCY FIRST APPEARS IN THE SOFTWARE. The function of all SPYDER Services is subject to SELLER’s review of each individual order and inventory file leaving the Service, and SPYDER reserves the right to correct any errors or mistakes made by the Software, per the terms of the preceding Sections 9.3 and 9.4.

9.6 Consequential Damages Waiver. Except for a breach of Section 4.1 (“Confidential Information”) of this Agreement, in no event will either party or its affiliates be liable or responsible to the other for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.

9.7 Basis of the Bargain; Failure of Essential Purpose. The parties acknowledge that SPYDER has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.

9.8 Government Regulations. SELLER will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction SELLER operates or does business. SELLER agrees to indemnify and hold harmless SPYDER in any legal action resulting from SELLER’s failure to follow all applicable government regulations.

9.9 Entire Agreement. This Agreement and any additional written agreements between the Organization and SPYDER, are the entire agreement between the Parties on the subjects covered by it, and it supersedes all prior negotiations, proposed agreements, and agreements, whether oral or written. The terms of this Agreement are intended by the Parties hereto to be the final expression of the Parties with respect to such terms as are included in this Agreement and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. Once signed, any reproduction of this Agreement made by reliable means (e.g. photocopy, facsimile) is considered an original. This Agreement may be changed only by a written document signed by authorized representatives of SPYDER and SELLER in accordance with this Section. For purposes of this Agreement, the term “written” means anything reduced to a tangible form by party, including a printed or hand written document, email or other electronic format.The Parties further intend that this Agreement shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever as to the meaning, interpretation, or import of any term in this Agreement may be introduced in any judicial action or proceeding involving this Agreement.

9.10 Modification. This Agreement may be modified only by written agreement of SELLER and SPYDER setting forth the changes hereto and the effective date of such changes.

9.11 Neutral Construction, Headings. Each Party has cooperated in the drafting and preparation of this Agreement. Hence, this Agreement will be construed neutrally, and no term of it is to be applied more strictly against one Party than any other Party. No use of the singular or plural nor any designation or lack of designation of gender shall be deemed to be exclusive of the opposite. Any headings in this Agreement are for convenience only and are not to be deemed to be a part of it or to be used as an aid to the Agreement’s interpretation.

9.12 Waiver of Terms. A waiver of any term or condition of this Agreement will not be deemed to be, and may not be construed as, a waiver of any other term or condition hereof.

9.13 Amendment etc. This Agreement may be amended, modified, canceled, or waived only by written instrument executed by each and every of the Parties hereto.

9.14 Governing Law and Venue. All questions with respect to the construction of this Agreement and the rights and liabilities of the Parties hereunder shall be governed by the internal laws of the State of California.

Execution and Performance. For purposes of choice of law, this Agreement is deemed by the Parties to be executed and performed wholly in the County of Orange, California.

Arbitration. Any dispute or controversy regarding the operation or terms of this agreement shall be settled or tried by arbitration in accordance with the current rules of the American Arbitration Association.

Punitive damages; Expenses. The arbitrators will not have the authority to award punitive damages to either party. Each party shall bear its own expenses, but the parties will share equally the expenses of the Arbitration.

Award is Final; Appeal. The decision of the Arbitration Panel will be the sole and exclusive remedy between the parties regarding any and all claims and counterclaims with respect to the subject matter of the arbitrated dispute. The decision of the Arbitration Panel will not be appealable, will not be subject to collateral review by any Court, and will not be used by the parties in any proceeding or forum that is not subject to this Agreement with the only exception being that either party may appeal a final arbitration decision to a federal court with jurisdiction, or alternatively to any appropriate judicial authority, where there is a final decision in excess of $100,000 and/or a decision that has a financial impact on the party’s operations in excess of $100,000.

Matters Not Subject to Arbitration. The matters which, as referred to above, are not subject to the general rule set forth herein regarding the arbitration of disputes include claims for preliminary injunctive relief, other pre-judgment remedies, and claims for SELLER’s failure to pay for Services in accordance with this Agreement, which may be brought in a state or federal court in Orange County, California with jurisdiction over the subject matter or parties.

9.15 Execution in Counterparts. This Agreement may be executed in any number of counterparts, which together shall constitute one instrument.

9.16 Facsimile Copies. For convenience, the Parties agree that facsimile or electronic transmission copies of this License and Service Agreement shall serve as originals for all purposes.

9.18 Assignment. SELLER may not assign its rights or delegate its duties under this Agreement either in whole or in part without prior written consent of SPYDER, and any attempted assignment or delegation without such consent will be void. SPYDER may assign this Agreement in whole or in part. SPYDER may also delegate the performance of certain Services to third parties. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

9.19 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by email (provided receipt is confirmed) or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed on the signature page hereof or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is mailed or date receipt of email is confirmed, whichever is earlier (“Effective Date of Notice”).

9.20 Relationship of Parties. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between SPYDER and SELLER. Neither SPYDER nor SELLER will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

9.21 Value Added Resellers. SPYDER may establish relationships with SPYDER certified value added resellers (VAR), consultants, partner resellers or other online Seller service support vendors. Any relationship SELLER’s business establishes with a certified SPYDER VAR is independent of all obligations and responsibilities contained in this Agreement. The VAR is not an agent of SPYDER and SPYDER is not an agent of the VAR.